HKSAR v. CHUNG KWOK TUNG

HCMA 303/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 303 OF 2008

(ON APPEAL FROM TMCC 53/2008)

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J U D G M E N T

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1.  This is an appeal by three appellants, whom I shall call D7, D8 and D9 as they were so designated at the trial, against their convictions by Deputy Magistrate Douglas Kwok for conspiracy to export unmanifested cargo.

2.  The events giving rise to the charge arose on the 23rd of November of 2007, when customs officers were carrying out observations along the coast by Tuen Mun, involving a pier and a car park 1 km inland from it.

3.  Between midnight and 1 a.m. two goods vehicles were seen at the car park along with a private car; the goods vehicles contained electrical goods, which included a substantial number of computer hard disks, all in cartons wrapped up in waterproof quality polythene; the three appellants all took part in transferring cartons to two further goods vehicles that appeared at the car park; these latter two vehicles were seen to set off in a direction that could have taken them to the pier; within a few minutes two goods vehicles were unloading at the pier onto sampans there; the customs officers took action; two sampans said to be carrying ‘smuggling goods’ escaped from the scene at high speed, two sampans were detained.

4.  Computer hard disks were recovered from the ground at the car park by the first two goods vehicles, from one of those goods vehicles, from the ground at the pier, from one of the two goods vehicles at the pier and from one of the two sampans at the pier.  A rough estimate of the value of the goods was in the region of 13 million Hong Kong dollars.

5.  12 radio transceivers were seized.  Four of them came from the two motorised sampans at the pier; one each from the two goods vehicles that had arrived at the pier and commenced unloading to the sampans; and six were in the private vehicle that had arrived at the car park and from which at least two of the appellants had emerged.  Its ignition key was found on D7.  All of these radio transceivers were functional and could mutually communicate.

6.  All three appellants admitted upon their arrest at the car park to be transporting goods at the scene.  D8 and D9 also then claimed to have been working for a boss earning HK$400 and HK$300 per day respectively.

7.  There are some, not very good, photographs of the locations.  They are good enough to see that they are quite suitable for some nefarious activity by night.

8.  No evidence was called by the defence.

9.  It was contended that there was insufficient evidence to establish that the two goods vehicles which left the car park were the same two vehicles that arrived at the pier.  The customs officer who observed them leaving the car park was able to see and give evidence of their registration numbers.  The observing officer at the pier did not see or record the numbers.

10.  There was a written admission under section 65(c) of the Criminal Procedure Ordinance to the effect that the seizure of the exhibits P1 to P76 and the chain of evidence were not disputed by the appellants.  An exhibit list appears in the papers, which was clearly before the court as it set out the details of the 76 exhibits.  The admission is not happily drafted and the exact extent of what was being admitted is not made clear, but it appears to be apparent that everyone proceeded on the agreed basis of the exhibit list.  That list shows that items P8 and P26 were light goods vehicles recovered at the pier bearing the registration numbers set out in the exhibits list.  These two registration numbers were the same numbers seen on the goods vehicles leaving the car park.

11.  However, if it should be the case that these details were not being admitted below, it was an overwhelming inference that the two goods vehicles that left the car park when the same two that arrived at the pier.  The congruence of time, place, with the direction of travel and the nature of the goods found at the place where the two vehicles had been loaded and where they were unloaded support the inference.

12.  A point was made that there was no direct evidence that the electrical goods were without a manifest.  That is true, but of course it was to be inferred as there was no evidence of any paperwork which would have met the statutory definition of a manifest and none was to be expected in the circumstances that existed here.  I am of course aware that the absence of evidence is not necessarily evidence of absence, but it is in the circumstances proven here.

13.  I say this as the circumstances clearly demonstrate an operation of an illicit nature.  To find otherwise would be closing one’s eyes to common sense.  Given the time, the place, the activity, the wrapping, the speedboats, the nature and value of the goods and our general lack of import duties, any Hong Kong magistrate would infer the existence of a conspiracy to export unmanifested goods to Mainland China.  Someone organized it and he could not realistically have acted alone.

14.  However, it is not the inference that some persons must have conspired as alleged which is realistically attacked: it is the inference that these appellants must have been a party to that conspiracy.

15.  The first point made in this regard is that there was insufficient evidence to establish an agreement to deal with the goods, whether by export or otherwise, without a manifest.  Realistically, the sort of men who move goods on a car park in the middle of the night are not going to say to each other we agree to do this without a manifest.  However, such a specific agreement is not what the prosecution have to prove.  The definition of conspiracy in section 159A(1) of the Crimes Ordinance requires a person to agree with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, will necessarily amount to or involve the commission of an offence by one or more of the parties to the agreement.

16.  Applying that definition to the circumstances of this case requires one to examine what course of conduct was agreed to by any particular appellant.  Of course, the persons who truly know the nature of the agreed course of conduct are the appellants themselves.  However, they chose not to give evidence.  It goes without saying that their election is no indication of guilt but as the magistrate pointed out, this is a case which engages the considerations set out in Li Defan whereby the absence of an explanation on oath can strengthen the inference to be drawn from the prosecution case.

17.  Thus in relation to whether or not the agreed course of conduct would necessarily involve dealing with the goods without an export manifest as defined in the Import and Export Manifests Notice, one needs first to ask whether any appellant must have known he had involved himself in an illicit operation.

18.  This consideration involves matters common to the other main submission made by the appellants, to the effect that there was insufficient evidence to infer an agreement to export goods rather than deal with them in some other way.  This further submission requires proof of a course of conduct beyond the merely illicit, as the point is made the prosecution must fail if a competing inference can be drawn that the appellants agreed, for instance, to deal with stolen goods or dangerous drugs without exporting them.

19.  The evidence against the three appellants is not identical.  D7, who did not claim to be worker like the other two on arrest, was linked to the private car.  The key to the car was found on him and also the evidence revealed that after his arrest he indicated that his identity card was in his car and that indeed it was fetched from it.  The car contained six radio transceivers that could communicate with those on the two goods vehicles and the two sampans at the pier.

20.  I regard this evidence against D7, in the absence of an explanation from him, in the circumstances that I have already adverted to in concluding that the inference was to be drawn that this was an illicit operation, as being a proper grounding to support the only reasonable inference that he was complicit and knew what was taking place.

21.  What about the two men who claimed to be working for a daily wage?  One has to avoid being cynical, but does any man concerned in organising an operation that involves goods valued in the region of 13 million dollars risk its success by employing at the sharp end those whom he has kept in ignorance of the true nature of the enterprise?  Common sense tells one that those recruited for the jobs undertaken by D8 and D9 need to be trusted men and that the trust must involve knowledge in them of the enterprise and proper reward for the risk of being caught.

22.  It is thus that I judge, in the absence of explanation, by reason of his last consideration taken with the time and place of their observed activity, that the only reasonable inference to be drawn is that D8 and D9 knew they were engaged in an illicit operation along with D7.

23.  What then of the nature of this illicit operation?  Is it to be inferred against any appellant that he agreed to a course of conduct whereby goods would necessarily be exported without a manifest?

24.  It was argued that the evidence was equally consistent with an inference that the appellants were dealing with dangerous drugs or stolen goods or goods which it was unlawful to possess in commercial quantity such as pirate CDs or pornography.  I reject the idea that any of them believed they were dealing with dangerous drugs by reason of the weight and extent of the goods in question.  If the goods were in fact stolen goods, or believed to be so, the prospect of there being no manifest was the greater.  Thieves and handlers do not particularise in writing a description of their stolen goods with details of the name and address of consignor and consignee and the like.  Whether or not the goods were in fact stolen or thought to be stolen does not matter.  What matters is whether or not it can be inferred that the appellants knew the goods they were dealing with were to be exported.

25.  It was argued that there was no evidence that any of the appellants knew that they were 1 km from the pier and so nearby the sea for export and that even if they were they could have been playing a part importing them rather than exporting them.

26.  As regards the importation point, I reject it.  Who, living in Hong Kong, would ever have heard of the criminal importation of goods of a quality and quantity that they need to be moved by more than one goods vehicle that were not dangerous drugs?  I suppose a good general knowledge may pose a suggestion that it could have been strategic commodities or something of that nature or maybe alcohol to avoid a tax or pirate CDs.  Anyone who reads the papers in Hong Kong or listens to the news will have had plenty of opportunity to learn of the smuggling of electrical goods and the like from Hong Kong to the Mainland.  I thus regard the suggestion that any appellant genuinely may have thought he was dealing with goods coming into Hong Kong from the sea to be fanciful.  Import was a possible but not a competitive inference.

27.  As regards the assertion that the appellants did not know that they were near to the sea, is it not the case that most people know where they are most of the time?  The idea that adult men, who turn out in the middle of the night to move goods like this on a car park which the map shows to be between the Tuen Mun road and the Castle Peak road, do not know where the nearby sea lies is one that I dismiss.

28.  What of the argument that the evidence supported an inference that the appellants believed that they were illicitly dealing with something like pirate CDs or that they may even have taken sufficient money that they would join the criminal enterprise and move anything no questions asked.  I judge that the idea that they were recruited to such an operation and kept in ignorance of its true nature is not a realistic one for the reasons I have already given concerning the risk to the organizers of involving the innocent and putting at risk $13 million worth of goods to save the extra wages of two labourers.  I would add that common sense tells one that men minded to involve themselves in illicit activity such as this generally will surely want to know what it involves for them should they be caught.  It is not reasonable to think that nothing would be asked or said about it.  Since smuggling probably is one of the least mischievous of the possible illicit activities involved, why would the paymasters say otherwise?  Men knowingly joining an illicit enterprise will want to be paid more than their usual rate for lawful work.  How could the extra be assessed and accepted without knowing what was at stake?  I judge there are plenty of men who would be willing to earn some extra wages by helping in some smuggling who would not take the risk of moving stolen goods or drugs.  Men who knowingly involve themselves in crime are, in the absence of some unusual circumstance indicating the contrary, to be taken to know the general nature of it.

29.  However, even if there had been a deliberate vagueness in the organisation that had the appellants playing their part, what were they to think, for surely they must have pondered what it was that they were about: the evidence reveals the transfer of an extensive amount of goods near to the seashore in the New Territories in the middle of the night and it reveals that the goods, or at least some of the goods, were in waterproof wrapping.

30.  In the absence of an explanation, I judge that the inference of knowledge of export does run against those transferring the goods at the car park.  In the case of D7 the inference is much stronger due to the evidence connecting him to the radio transceivers.  The inference is to be drawn that each appellant knew they were part of a smuggling enterprise and that the agreed course of conduct involved export of the goods without a manifest.

31.  Of course I considered the self serving claims by D8 and D9 to working for a modest wage which accompanied their admissions to moving the goods.  In the circumstances I was not prepared to give such unsworn and untested claims any significant weight.

32.  At the close of the prosecution evidence there was a case to answer.  This appeal is yet another instance where a failure to answer it proves to be fatal.  When common sense suggests one thing, it is not enough just to argue other scenarios are theoretically possible.  It needs evidence to meet the case that common sense supports, if common sense is not to have its way.  It is not reversing the burden of proof to point out that if this was a lawful contract of carriage innocently carried out by a proprietor of a business employing two innocent workers, the failure to give evidence to that effect when the facts supporting it were within their knowledge, was bound to affect the evaluation of the respondent’s evidence and the strength of the available inferences.

33.  The appeals against conviction are dismissed.  The appeals against sentence were abandoned.